Filed 10/16/19 Romo v. Newsom CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

RODRIGO ROMO,

Plaintiff and Appellant,

v.

GAVIN NEWSOM, as Governor, etc., et al.,

Defendants and Respondents.

C080941

(Super. Ct. No. 34-2015-00181715-CU-CR-GDS)

BACKGROUND

Plaintiff Rodrigo Romo, on behalf of himself and his two minor children, sought injunctive and declaratory relief and attorney fees from the state. (Code Civ. Proc., § 1021.5.) He complained that the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR or Division)–in its regulation of permits for privately funded oil- and gas-producing operations using “well stimulation treatment” (WST) such as hydraulic fracturing–fails to fulfill defendants’ legal obligations to protect plaintiff and his children and other students of color “from the adverse, racially disparate effects of well stimulation.”

The Division acts pursuant to its authority under the oil and gas conservation provisions of the Public Resources Code section 3150 et seq. and WST regulations adopted pursuant to that statutory authority. (Pub. Resources Code, § 3160, subd. (b)(1)(A); Cal. Code Regs., tit. 14, § 1783 et seq.) Romo refers to the WST regulations as “SB 4 Regulations,” because their statutory authorization was enacted by Senate Bill No. 4 (2013-2014 Reg. Sess.) (Stats. 2013, ch. 313, § 2) (Sen. Bill No. 4).

Romo’s complaint did not allege any violation of the Public Resources Code or the WST regulations. Indeed, the complaint did not even identify, cite, or specify the WST regulations at issue. Instead, Romo broadly alleged that the WST regulations failed to remedy existing discrimination, for example by requiring minimum setbacks from schools, in violation of the civil rights provision of Government Code section 11135. That code section provides in relevant part that: “No person in the State of California shall, on the basis of sex, race, color . . . , be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. . . .” (§ 11135, subd. (a); see also § 11139 [authorizing a civil action for equitable relief].)

Romo appeals from a judgment of dismissal following demurrer by defendants Edmund G. Brown, in his official capacity as then-Governor of California, DOGGR, and Steve Bohlen in his official capacity as California Oil and Gas Supervisor (Supervisor). Romo posits that, because the Division as a State agency is necessarily state-funded, the Division’s oversight of permits for privately funded WSTs constitutes “administration” of a “program or activity” subject to section 11135.

Assuming this is indeed the case, it is of no moment, because Romo’s complaint does not state a claim. As we explain, Romo’s complaint is effectively a challenge to defendants’ alleged failure to, as the trial court found in part, “completely eliminate the existing disparate impact by enacting . . . regulations . . . beneficial to children of color.” As such, although we certainly sympathize with Romo’s concerns regarding the effect of WST on communities of color, the complaint fails to state a cause of action against defendants and Romo has not shown he is able to cure its defects through amendment. Consequently, we must affirm the judgment.

FACTS AND PROCEEDINGS

The complaint, filed on July 14, 2015, alleges as follows:

Romo’s two children, who were then age 13 and 17 attending public schools within 1.5 miles of a well stimulation, were being exposed or would be exposed to dangerous levels of toxic air pollution, adverse health effects, and psychological distress due to the schools’ close proximity to oil and gas development. Romo suffered from psychological distress and fear for his children’s health and safety.

Senate Bill No. 4 charged the Division with regulating permits for WSTs and called for the Division to adopt regulations specific to WSTs, e.g., to notify property owners and tenants near WST sites, ensure integrity of wells, and monitor composition and disposition of well stimulation fluids. (Pub. Resources Code, § 3160, subds. (b)(1)(A)-(B), (d)(6)(A).) The Supervisor supervises the Division regarding drilling, operation, maintenance, and abandonment of WSTs regarding safety and environmental damage.

The civil rights statute, section 11135, and its implementing regulations, prohibit the State from using administrative methods that have a discriminatory effect, even if unintentional, and prohibits recipients of state funds (allegedly including a state agency), from allowing facilities to be located at sites that subject persons to discrimination.

Since the California petroleum industry began in 1865, more than 210,000 wells have been drilled in search of oil, gas, and geothermal resources. The Division supervises the drilling, operation, maintenance, plugging, and abandonment of onshore and offshore oil, gas, and geothermal wells. The Division is responsible for preventing damage to life, health, property, natural resources, as well as underground and surface waters suitable for irrigation or domestic purposes.

Governor Brown signed Senate Bill No. 4 in 2013 in order to provide transparency and accountability to the public regarding WSTs. It required the Division to develop a formal rulemaking process for well stimulation. The Legislature noted the scientific and regulatory uncertainty of well stimulation’s environmental, occupational, and public health risks. The legislation mandated that the Division adopt regulations to review, approve, or deny permits and consider the risks. WSTs were allowed with minimal oversight during an interim grace period. Interim regulations were in effect for a period of time. On December 30, 2014, the Office of Administrative Law approved and filed the Division’s final WST regulations with the Secretary of State.

In July 2015 the Supervisor certified the final environmental impact report evaluating impacts of existing and potential oil and gas WSTs, and the final WST regulations went into effect, designed to protect health, safety, and the environment, and supplement existing strong well construction standards. Shortly thereafter, the California Council on Science and Technology issued a report on WSTs and their potential impacts on water, atmosphere, seismic activity, wildlife, vegetation, and human health.

“Reports” (which are otherwise unspecified or identified) allegedly indicate that, since Governor Brown took office in 2011, the Division has prioritized fast-tracking permit approvals over assessing public health and environmental risks, placing serious and disproportionate health risks on students of color attending California public schools. “Based on information and belief,” Supervisor Elena Miller and Department of Conservation Director Derek Chernow raised concerns, but oil and gas industry representatives lobbied Governor Brown and (nonparty) Kern County to speed up oil and gas well permits. The Governor asked Chernow to ease regulations and fired Chernow (and Miller) after Chernow wrote a memo that relaxing rules would violate environmental laws. “Based on information and belief,” the new director streamlined the permit process to allow drilling without a full review. In 2015 he was named as a defendant in a federal lawsuit brought by Kern County farmers, alleging a conspiracy to allow illegal oil waste injections. He resigned.

In 2014 the State Water Resources Control Board discovered violations of the Safe Water Drinking Act and ordered the Division to shut down 23 injection wells. The Division has allowed continued operation of 1,063 wells near potential sources of drinking water.

The complaint sets forth in great detail information about the technologies involved in WST, the federal and state promotion of these new techniques to capture strategically important domestic resources to reduce our nation’s dependence on politically and economically unstable sources of foreign oil, and disproportionate siting of WSTs in communities populated mainly by persons of color, and the adverse environmental impacts of WSTs.

The complaint goes on to allege that WST regulations, by failing to require setbacks, fail to protect public schools and other sensitive land uses such as hospitals and residences. The regulations do not limit where operators can locate WSTs. The regulations require notification to landowners and tenants but not to schools (which Romo apparently assumes are neither landowners nor tenants). The regulations do not require notice to students, parents, or teachers.

The majority of other states allegedly require setbacks. WST occurs in 32 states, of which only 11 (including California) do not require setbacks. The California Council on Science and Technology recommended setbacks from residences, schools, and other sensitive structures, in its July 2015 report.

The complaint’s sole cause of action alleged disparate impact discrimination under section 11135, as follows:

(a) A prima facie violation of section 11135 occurs when a program or activity, funded by the state, results in a disparate impact on a protected group.

(b) Defendants’ approval of Senate Bill No. 4 regulations without setbacks or geographical limitations on well stimulation “has the effect of continuing historic discrimination against students of color.” Students of color attending schools within 1.5 miles of a well stimulation, including Romo’s children, suffer increased exposure to toxic air pollution and psychological harm while already suffering from existing disparate environmental burdens as compared to the comparison population. Defendants are officials of the State of California and a state agency and have violated section 11135.

(c) As a direct and proximate result of defendants’ unlawful conduct, Romo and his minor children have suffered irreparable harm.

The complaint asked the court to declare that defendants violated section 11135, invalidate the regulations, and enjoin defendants from approving any permit applications until it adopts new regulations compliant with section 11135. The complaint also sought an award of attorney fees, costs, and expenses under the private attorney general statute, Code of Civil Procedure section 1021.5.

Defendants demurred to the complaint, arguing no statute mandates setbacks, and the Division has broad discretion in adopting the regulations. Romo opposed the demurrer.

The trial court sustained the demurrer without leave to amend, stating the Division’s regulations were legislative in character and came to the court with a strong presumption of correctness. Romo relied solely on section 11135, yet acknowledged children of color were already disproportionately impacted by private entities’ operation of WSTs, and defendants’ failure to eliminate the already existing disparate impact by adopting more regulations more beneficial to children of color failed to state a cause of action.

Romo appeals from the ensuing judgment of dismissal.

DISCUSSION

I

Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, . . . [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. . . . However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) In reviewing the sufficiency of a complaint against a demurrer, we may consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We will affirm a trial court’s decision to sustain a demurrer if the ruling is correct on any legal ground. (Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 50.)

II

State Agency Oversight of Private Oil and Gas Operations

Public Resources Code section 3160, subdivision (d)(3) gives the Supervisor the authority to approve a WST permit. After approving the permit (which is good for one year (id., subd. (d)(4)), the Division gives notice to the regional water quality control board and the local planning entity and posts the permit on the Division’s publicly accessible website (id., subd. (d)(5)). Additionally, a copy of the permit and information on water sampling and testing is to be provided by an independent entity or person, to every affected property owner or tenant as defined by the statute. (Id., subd. (d)(6).) Property owners may request water quality sampling and testing, which will be arranged by the State Water Resources Control Board, conducted by an independent third-party contractor, and paid for by the WST owner or operator. (Id., subd. (d)(7).) The statutes also call for water quality data after cessation of WST. (Id., subd. (g).)

The regulations implementing these statutes (Cal. Code Regs., tit. 14, § 1783 et seq.) require notification to neighboring landowners and tenants before WST is commenced (id., § 1783.2). The regulations specifically require the operator to continuously monitor and record data such as surface injection pressure, slurry rate, etc., and to terminate the WST and immediately notify the Division of any changes. (Id., § 1785.) The regulations also govern storage and handling of WST fluids and waste (id., § 1786) and monitoring after WST (id., § 1787) and requires specified public disclosures (id., § 1788).

III

Plaintiff’s Challenge to the Regulations

A. The Complaint

We review de novo, but we agree with the trial court that a close reading of the complaint reveals it fails to state a cause of action against defendants and the failure cannot be cured. We reach this conclusion without the need to analyze the application of section 11135 to the regulations at issue here.

The complaint purports to challenge the regulations adopted to implement Senate Bill No. 4 that involve WST, commonly known as fracking, in toto. But nowhere does the complaint even identify those regulations or state what they say and how their application is discriminatory. (14 Cal. Code Regs., § 1780 et seq.) No direct effect of the challenged regulations–whether negative, positive, or neutral–is alleged in the complaint. There is no allegation that the regulations in and of themselves cause or even slightly increase the practice of WST or affect the location of WST in any discriminatory fashion.

As described by the complaint, plaintiff’s quarrel is with the practice of fracking in general and Senate Bill No. 4 itself rather than any implementing regulations. Plaintiff argues Senate Bill No. 4 seeks to optimize oil yields and thus will increase fracking. Despite being quite understandable and even compelling, this broad concern about ongoing fracking and its impact on communities of color is not actionable in the manner proposed by the complaint. The regulations are not the problem; ongoing fracking and its perceived encouragement by Senate Bill No. 4 is the problem. Plaintiff admitted to the trial court that without Senate Bill No. 4 there would be no lawsuit, and we agree. It is the practice of WST that plaintiff is challenging and that practice is encouraged by Senate Bill No. 4, not the regulations.

The actual allegation in the complaint is a “failure to protect” by issuance of “better” regulations, rather than an allegation that the current regulations have a disparate impact on protected communities. The complaint alleges primarily that the defendants approved regulations that were inadequate because they allow discriminatory injury to plaintiffs to continue. The inadequacies are described later in the complaint as failing to limit where WST may occur, failing to require notification of WST usage to schools, failing to impose setbacks, and failing to give community residents and school officials and students a voice in the permit review process. The complaint also alleged that students of color are more likely to attend schools closer to WST, which has documented ill effects on the health of those near WST activity.

In adopting regulations to implement a statute, an agency is not free to adopt any regulation it sees fit. “When a statute confers upon a state agency the authority to adopt regulations to implement, interpret, make specific or otherwise carry out its provisions, the agency’s regulations must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose.” (Mooney v. Pickett (1971) 4 Cal.3d 669, 679.) A regulation must be “within the scope of authority conferred.” (§ 11342.1.) Plaintiff fails to allege how the regulations fail to implement Senate Bill No. 4 or how it conferred authority to remedy the alleged deficiencies. By the complaint’s own description of the problem, the affected communities were impacted prior to the passage of Senate Bill No. 4, and the implementing regulations do nothing to make things better. But nothing in Senate Bill No. 4 mandates that the regulations do so and in the absence of a mandate, the claimed failure to remedy is simply not actionable, even under section 11135. As defendants observed, plaintiff has to “at least allege that there is something harmful about the [] regulations . . . .”; we agree and observe that plaintiff has not done so and cannot do so here, even if given leave to amend. There is simply no allegation in the complaint that the challenged regulations themselves, standing alone, have any discriminatory effect whatsoever.

B. Leave to Amend

Plaintiff does not propose any amendment that could save the complaint. In his briefing, he proposed only to add more allegations of how the WST operations disparately harm students of color. Although these allegations of harm cause us great concern, the complaint at issue here is not a valid challenge to the regulations it purports to attack.

At oral argument, plaintiff proposed that the complaint could be amended to allege that the regulations exacerbated the problem of disparate harm to communities of color, expanding on a brief reference at the hearing and in his opening brief. He reasoned that the regulations provided certainty and asserted that there is more involvement in an activity after it is regulated. Thus, he argued, the regulations would increase the harmful activity because the certainty they provided would cause more WST operations. As defendants observed (and as plaintiff alleged in the complaint), however, Senate Bill No. 4 mandates regulations, so there will always be regulatory certainty, regardless of what the regulations say. Under plaintiff’s theory of regulatory certainty, any regulation will increase WST operations.

Plaintiff’s true complaint about the regulations is that they fail to regulate WST operations in the manner he desires. This argument is contrary to his “regulatory certainty” argument. Disagreement over how regulations, consistent with the enabling legislation, address a problem fails to state a claim for relief. “It is the prerogative of the Legislature to prescribe the powers and authority of an executive agency created to deal with a specific public problem such as public health. The manner in which this authority is exercised is a matter of administrative discretion. The wisdom or effectiveness of the exercise of either legislative or administrative discretion is judged essentially by the political process. [¶] In short, the judicial branch of government is not the overseer of the other two. A citizen’s mere dissatisfaction with the performance of either the legislative or executive branches, or disagreement with their policies does not constitute a justiciable controversy.” (Zetterberg, supra, 43 Cal.App.3d at p. 662.)

DISPOSITION

The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/s/

Duarte, J.

I concur:

/s/

Robie, J.

Hull, J.,

I concur in the result but dissent from the majority’s analysis.

The majority opinion finds a defective pleading via a reading of the complaint that ignores well-settled rules of liberal construction and amendment of pleadings upon appellate review of the granting of a demurrer.

I would confront the key issue which is whether Government Code section 11135 applies to this case (statutory section references that follow are to the Government Code unless otherwise stated) and would conclude — notwithstanding the respondent’s concessions at oral argument — that section 11135 does not apply to the “well stimulation treatment” (WST) regulations, because that Government Code statute addresses only discrimination in the direct provision of benefits to the public using state funds, and here no state funds are used to provide direct benefits to the public.

Romo’s complaint alleges a single cause of action for violation of section 11135, which provides in subdivision (a): “No person in the State of California shall, on the basis of sex, race, color [etc.], be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. . . .” Section 11135 “shall not be interpreted in a manner that would frustrate its purpose.” (§ 11139.)

Romo views the words “unlawfully subjected to discrimination” in the statute as a clause independent of the preceding clause about denial of access to benefits. Romo argues he pleaded all elements of section 11135 by alleging that the facially-neutral WST permit program, administered by a state agency (the Division of Oil, Gas, and Geothermal Resources, hereafter Division) that operates on state funds, has a disparate impact on protected groups (students of color).

Before setting out my view of the proper statutory construction of section 11135, a matter not decided by the majority, I first discuss the majority’s analysis of the pleading before us.

The majority say Romo has no viable claim that the WST permit program causes discrimination, because WSTs had a disparate impact on students of color even before promulgation of the Senate Bill No. 4 regulations, and the complaint merely alleges the regulations fail to cure the preexisting historic discrimination. The majority say there is no allegation in the complaint that the regulations in and of themselves cause or even slightly increase the practice of WST.

Assuming for the sake of argument that the complaint should be read as narrowly as posed by the majority, Romo sought leave to amend the complaint — in the trial court and on appeal — in a manner that would cure the defect identified by the majority.

The majority thus ignore the well-settled rule that, in reviewing a demurrer, we do not limit ourselves to the complaint’s allegations but also consider whether the complaint can be amended to state a cause of action. It is an abuse of discretion for the trial court to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]” ’ ” (Aubry, at pp. 970-971.) “[L]eave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Here, though not alleged in the complaint, Romo asserted in the trial court and on appeal that he could cure such defect by amending the complaint to allege the Senate Bill No. 4 regulations have resulted in increased WST activity, creating an additional burden on students of color, because the regulations provide “regulatory certainty” encouraging investors to invest in the private parties who engage in WST activity. In addition to raising the point in the trial court, Romo’s appellate brief says Romo can amend the complaint to further illustrate “how regulatory certainty [fn. omitted] from Senate Bill 4 contributes to a greater number of wells burdening students of color in California than that existed prior to the adoption of the regulations.” The appellate brief adds in a footnote: “The principle of ‘regulatory certainty’ posits private actors are more likely to invest in activities after they are regulated because they can make more informed long-term financial decisions. ([Citation to Romo’s argument in the trial court]. See also, Sivas & Caldwell (2008) A New Vision For California Ocean Governance: Comprehensive Ecosystem-Based Marine Zoning, 27 Stan. Envtl. L.J. 209.)”

The majority dismiss this argument simply by saying that, because there will always be regulations in any event, regulatory certainty cannot be part of the equation. But, in my view, despite the majority’s summary dismissal of plaintiff’s suggested arguments regarding amendment, that dismissal does not explain why there is no reasonable possibility that the defect in this complaint might be cured by amendment as, for instance, by alleging that the regulations they challenge bring forth a regulatory certainty that is detrimental to their cause while amended regulations may not. The majority appears to ignore the principle that, in the furtherance of justice, great liberality should be exercised in permitting a plaintiff to amend his complaint

Thus, I disagree with the majority that its perceived defect in the complaint’s factual allegations justifies affirmance of the judgment of dismissal.

Instead, I would affirm the judgment of dismissal on the ground that plaintiff alleges a single cause of action based on an inapplicable statute.

I note the majority, while purporting not to decide whether section 11135 applies to WST regulations, asserts in a footnote that even if section 11135 is limited to state-funded programs or activities that directly benefit the public, the statute would apply to the WST program because the permit program provides benefits (WST permits) to certain members of the public (privately-funded oil/gas explorers). The majority adds that if, for example, the regulations limited WST permits to white applicants only, such regulations would surely violate section 11135, because they would subject minorities to discrimination under the state-administered “benefit” of WST permits. (Maj. Opn. p. 9, fn. 2.)

I disagree and note that that is not this case.

First, what an unusual point of view — to say that private entities subjected to government regulation restricting their activity (e.g., by enforcing monitoring of air and water quality) should be viewed as beneficiaries of the state funds that pay the government regulators. Second, inapplicability of section 11135 would not leave applicants of color unprotected, because denial of a WST permit on the basis of race or ethnicity could presumably be redressed by constitutional equal protection guarantees under California Constitution, article I, section 7. (Woods v. Horton (2008) 167 Cal.App.4th 658.) Woods was a challenge to gender-based classification in state-funded domestic violence programs that restricted benefits to female victims only (a claim clearly within the scope of section 11135), yet we declined to decide whether section 11135 was violated, and instead held the restriction violated equal protection principles.

I note plaintiff alleges private explorers do “benefit” from Senate Bill No. 4 WST regulations, in that the regulations afford some economic certainty, making private actors more comfortable investing in WSTs. This is alleged as a direct effect of the regulations, resulting in increased WST activity that is alleged to disproportionately impact students of color. But, as I will discuss post, the “benefit” plaintiff points to does not fit into section 11135, construed as a prohibition on denial or discrimination in the provision of “benefits” of state-funded programs or activities.

Turning to that question of statutory interpretation of section 11135, I would conclude section 11135 applies only to state-funded/administered programs/activities that directly provide benefits (in the form of money or other aid or services) to the public. It does not apply to the Division’s handling of the WST permit program that imposes regulatory burdens on private-funded WST activity.

This interpretation limiting the scope of section 11135 follows from application of rules of statutory interpretation to look at the statutory language as a whole, considering particular clauses in the context of the statute as a whole, and in the context of its statutory scheme and its implementing regulations. (People v. Mendoza (2000) 23 Cal.4th 896, 907-908; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.) This interpretation is also supported by extrinsic aids such as legislative history and public policy. (Mendoza, at pp. 907-908.)

Reading section 11135’s phrase that no person shall be “unlawfully subjected to discrimination” in isolation would make section 11135 apply to virtually everything the state or its agencies do, because it is hard to imagine the state or its agencies doing anything without state funds. Rather, those words must be read in the context of the statute as a whole, which concerns itself with protecting persons of color, etc. from being discriminated against with respect to “benefits” being provided to the public by the use of state funds.

In addition to being an absurd result, reading the statute as applying to everything done by the state or its agencies would render as surplusage the express incorporation of section 11135 in specific statutes to achieve “environmental justice,” defined as “fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.” (Pub. Resources Code, § 30107.3 [California Coastal Act].) Thus, the California Coastal Act (Pub. Resources Code, § 30000 et seq.), which protects the ecological balance of natural resource that is the coastal zone (id. at § 30001), states in Public Resources Code section 30013: “The Legislature further finds and declares that in order to advance the principles of environmental justice and equality, subdivision (a) of Section 11135 of the Government Code and subdivision (e) of Section 65040.12 of the Government Code [Planning and Land Use] apply to the [Coastal] commission and all public agencies implementing the provisions of this division. As required by Section 11135 of the Government Code, no person in the State of California, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, shall be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination, under any program or activity that is conducted, operated, or administered pursuant to this division [Cal. Coastal Act].” (Pub. Resources Code, § 30013, italics and brackets added; Stats. 2016, ch. 578, § 1 [Assem. Bill No. 2616].)

Additionally, various other statutes refer to the environmental justice concept. (E.g., Pub. Resources Code, § 71113 [working group on environmental justice]; Gov. Code, § 65040.12 [Office of Planning and Research (OPR) shall be coordinating agency for environmental justice]; Health & Saf. Code, § 25180.2 [Department of Toxic Substances Control (§ 25111) shall prioritize hazardous waste control enforcement “affecting communities that have been identified by the California Environmental Protection Agency as being the most impacted environmental justice communities”].)

These other statutes demonstrate that, when the Legislature wants to add anti-discrimination consideration to environmental laws, it knows how to do so. When it does not do so, we cannot supply what the Legislature has omitted. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 726-728; People v. Cole (2006) 38 Cal.4th 964, 980-981 [where Legislature wants to exempt health plans from commercial restrictions, it knows how to do so; absence of similar language in other statute reflected different intent].)

While “environmental justice” may warrant legislative action applicable to WST activity, that is for the Legislature to decide.

Construing section 11135 as inapplicable to the Division’s administration of the WST permit program is also supported by section 11135’s implementing regulations, which are found in California Code of Regulations, title 2, section 11150 et seq. and are under the purview of the Department of Fair Employment and Housing. The regulations were originally adopted by the Health and Welfare Agency with concurrence of the Fair Employment and Housing Commission under former sections 11138-11139.5 (repealed by Stats. 2016, ch. 870) and were originally found in title 22, section 98010 et seq. of California Code of Regulations.

The regulations state the general prohibition: “No person in the State of California shall, on the basis of ethnic group identification, religion, age, sex, color, or a physical or mental disability, be unlawfully denied the benefits of, or be unlawfully subjected to discrimination under any program or activity funded directly by the State or receiving any financial assistance from the State.” (Cal. Code Regs., tit. 2, § 11153.) The regulations have not been amended to conform with the statutory amendment that added program/activity “conducted, operated, or administered by the state or by any state agency.”

The regulations (Cal. Code Regs., tit. 2, § 11150) define the terms used in section 11135. “Program or activity” means “any project, action or procedure undertaken directly by recipients of State support or indirectly by recipients through others by contracts, arrangements or agreements, with respect to the public generally or with respect to any private or public entity . . . .” (Cal. Code Regs., tit. 2, § 11150.) “Recipient” does not include state agencies but rather is defined as “any contractor, local agency, or person, who regularly employs five or more persons and who receives State support, as defined in this Section [funds or financial assistance], in an amount in excess of $10,000 in the aggregate per State fiscal year or in an amount in excess of $1000 per transaction, by grant, contract, or otherwise . . . . ‘Recipient’ does not include State agencies. However, State agencies may look to this Division for guidance in the administration of their programs and activities.” (Cal. Code Regs., tit. 2, § 11150.) As indicated, the statute itself applies to state agencies. There is no need to resolve the apparent conflict in this appeal, because in any event section 11135 is inapplicable here because there is no program/activity that provides direct benefits to the public.

The regulations give examples of “program or activity” — “the provisions of employment or goods; the procurement of goods or services; the provision of education, training, health, welfare, rehabilitation, housing, or other services; the provision of cash or loan assistance; or the provision of facilities [real or personal property] for furnishing services, financial aid or other benefits.” (Cal. Code Regs., tit. 2, § 11150, definitions of “program or activity” and “facilities.”) The latter phrase — “services, financial aid or other benefits” — includes “(1) any services, financial aid or other benefits provided with the aid of State support, or with the aid of other funds or resources required to be expended or made available for the program to meet matching requirements or other conditions which must be met in order for the recipients to receive the State support; or [¶] (2) any service, financial aid or other benefit provided in or through a facility [real or personal property] which is or was provided with the aid of State support or other funds or resources.” (Ibid.)

Section 11135’s implementing regulations thus support interpreting the statute as limited to programs/activities that use state funds to provide direct benefits to the public.

This construction of section 11135 is also supported by its legislative history. To the extent a statute is ambiguous, we may resort to legislative history as an extrinsic aid. (City of San Jose (2017) 2 Cal.5th 608, 616-617.) Even where a statute is unambiguous such that the court need not resort to legislative history to interpret it, “courts may always test their construction of disputed statutory language against extrinsic aids bearing on the drafters’ intent.” (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 613, fn. 7; Hughes v. Pair (2009) 46 Cal.4th 1035, 1046 [courts may consider legislative history when it confirms, buttresses, or bolsters the plain meaning of a statute].)

The wording “conducted, operated, or administered by the state or any state agency” was added to section 11135 by a 2001 amendment. (Stats. 2001, ch. 708, § 1 (Assem. Bill No. 677).) The legislative history of the 2001 amendment shows that the reason for the new language was not to expand section 11135 to any state agency regulation of privately-funded activity, but rather “that state agencies must make their programs and activities accessible to people with disabilities,” and to “apply the same nondiscrimination and equal access obligations to any program or activity that is conducted, operated, or administered by the state or any state agency.” (Assem. Concurrence in Senate Amendments to Assem. Bill No. 677 (2001-2002 Reg. Sess.), as amended Aug. 20, 2001, p. 1; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 677 (2001-2002 Reg. Sess.), July 2, 2001, at pp. 1, 2.) The Legislature saw a need for the bill because part of section 11135 was based on the Title II of the federal Americans with Disabilities Act (ADA; 42 U.S.C. § 12101 et seq.), which imposes nondiscrimination obligations on States and their political subdivisions, yet the United States Supreme Court had recently issued an opinion — University of Alabama v. Garrett (2001) 531 U.S. 356 [148 L.Ed.2d 866] — holding States immune under the Eleventh Amendment from damages suits brought by disabled state employees under a different portion of the ADA. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 677 (2001-2002 Reg. Sess.), Feb. 22, 2001, pp. 1, 5-6.) Some commentators predicted that the Supreme Court would declare the same immunity for Title II of the ADA, which would threaten the scope of section 11135. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 677, supra, pp 1-2, 4-5.)

The University of Alabama case held that the federal ADA’s requirement that employers, including the States, make “special accommodations” for disabled employees, did not abrogate the States’ Eleventh Amendment immunity and therefore did not subject state employers to the ADA’s provision allowing employees to recover money damages for violations. (University of Alabama v. Garrett, supra, 531 U.S. at pp. 360-364, 374, fn. 9.)

Thus, section 11135’s addition of express language about state agencies’ administering programs/activities was not meant to create a duty when a state agency issues permits for privately-funded operations that do not involve use of state funds to provide benefits to the public.

Further support is provided in the legislative history of a 2016 amendment to section 11135. Although a declaration of a later Legislature is of little weight in determining intent of the Legislature that enacted prior legislation (De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 985, fn. 6), it may reinforce other indicia of legislative intent. The 2016 amendment (Stats. 2016, ch. 870, § 4 (Sen. Bill No. 1442)) made changes not at issue in this appeal, but the 2016 Legislative Counsel’s Digest stated: “Existing law prohibits discrimination in employment, housing, and eligibility for government programs and benefits based upon specified personal characteristics. Under existing law, the Department of Fair Employment and Housing within the Business, Consumer Services, and Housing Agency is charged with enforcement of civil rights violations, including discrimination. Existing law requires the department and other state agencies that administer programs or activities funded by the state or that receive financial assistance from the state and that enter into contracts for services to be provided to the public, as specified, to promulgate regulations to prohibit discrimination.” (Legis. Counsel’s Dig., Sen. Bill No. 1442, Stats. 2016, Ch. 870 (2015-2016 Reg. Sess.), Summary Dig., p. 1, italics added.)

Accordingly, I agree with the majority’s result affirming the judgment of dismissal but disagree with its reasoning and would instead hold the complaint fails due to the inapplicability of section 11135 to the allegations in the complaint.

/s/

HULL, Acting P.J.